'Gay is not ok' case: ConCourt must step in to provide clarity on hate speech, says legal expert

Constitutional Court. (Felix Dlangamandla, Netwerk24)
Constitutional Court. (Felix Dlangamandla, Netwerk24)

It is important for the Constitutional Court to give a proper interpretation of the law arising from the case of former diplomat Jon Qwelane's opinion on same-sex marriage, a legal expert has said.

On Friday, the Supreme Court of Appeal (SCA) overturned a High Court ruling that found Qwelane guilty of hate speech and ordered Parliament to rewrite the "vague" and "overbroad" law meant to protect against discrimination.

The SCA declared Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 to be inconsistent with the provisions of Section 16 of the Constitution, and therefore unconstitutional and invalid.

It gave Parliament 18 months from November 29, 2019, to remedy the defect.

The court further referred the order to the apex court for confirmation of the order of constitutional invalidity.

The former ambassador to Uganda was found guilty of hate speech in the South Gauteng High Court in 2017.

This after his column - Call me names, but gay is not okay - wherein Qwelane expressed his opinion on same-sex relationships.

READ: Qwelane column led to most complaints to SAHRC ever, court hears

It was published in the Sunday Sun on July 20, 2008.

News24 previously reported the column included a cartoon of a man marrying a goat. In addition, Qwelane lauded former Zimbabwean president Robert Mugabe's "unflinching and unapologetic stance" on homosexuality.

"There could be a few things I could take issue with Zimbabwe President Robert Mugabe, but his unflinching and unapologetic stance over homosexuals is definitely not among those," the column read.

The SA Human Rights Commission (SAHRC) previously told the court it had received 350 complaints about the column - this being the highest number it had ever received at the time.

Speaking to News24 on Monday, on behalf of the commission, Professor Bongani Majola said it had "mixed feelings" about the judgment.

He said the SAHRC had struggled with the application of section 10 of the act, adding "it is not the easiest [section to apply]".

"It is a difficult section to apply. That was also made even more difficult by the different high courts.

"We are not happy there was a dismissal, but we are much happier because it offers an opportunity for the clarification of the law.

"The judge has set it aside, and he has formulated a brief and much more understandable version. Hopefully, one that we will be able to work with until Parliament passes a replacement section," Majola said.

Meanwhile, independent legal analyst Phephelaphi Dube said: "It would be important for this case to go all the way to the Constitutional Court because at the moment, there really isn't clarity on the extent to which freedom of expression can be on the boundaries of freedom of expression so it is just important for there to be a clarity.

ALSO READ: SAHRC welcomes guilty verdict against Jon Qwelane

"The courts rightly point out that the act goes a step further than what the Constitution provides in a sense that it adds an element of hurtfulness that the Constitution doesn't have.

"So, at the same time, the Constitution does say we can limit these rights, but any limitation needs to be reasonable in an open and democratic society."

Dube said it was important for the apex court to come in and give a proper interpretation of the true limits of Section 16 of the Constitution.

"[The case] still needs to go to the Constitutional Court because in terms of the Constitution it is only the Constitutional Court that can make an order of invalidity regarding legislation.

"If the Constitutional Court agrees with the SCA, then it will have to go back to Parliament, and it would have those 18 months to amend the act," she said.

Another legal expert, Professor Pierre de Vos, stated in an article on his blog site, "Constitutionally Speaking," that the declaration of invalidity can be effective if it is confirmed by the Constitutional Court.

He also adds that while he agrees with the SCA that the wording of the existing section 10(1) of PEPUDA is overbroad and unconstitutional, "I suspect the SCA’s rewritten hate speech provision quoted… is stricter than would be permissible under the limitation clause".

"If that is correct, and if the judgment is confirmed by the Constitutional Court, the legislature will have some discretion to redraft a hate speech provision that strikes the correct balance between protecting freedom of expression on the one hand, and protecting individuals against harmful speech aimed at them because of their race, gender or sexual orientation, on the other."

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